CIVIL PROCEDURE FALL 2005 SECTIONS C & F CLASS 22 DISCOVERY III

WRAP UP: AUTOMATIC DISCLOSURES Differ from other discovery techniques in that must be provided automatically without any request from opposing party Differ from other discovery techniques in that must be provided automatically without any request from opposing party 3 types: outset of case, pretrial, experts 3 types: outset of case, pretrial, experts

INTERROGATORIES See CB 931 for Ultimate Auto answers to P’s interrogatories See CB 931 for Ultimate Auto answers to P’s interrogatories Which FRCP governs interrogatories? Which FRCP governs interrogatories? How many interrogatories may be served on another party? How many interrogatories may be served on another party?

WHAT MUST BE DISCLOSED AS TRIAL APPROACHES? ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B)) ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B)) ID of trial witnesses that party will use or may use (except solely for impeachment) and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will/may be evidence at trial (exhibits) (FRCP 26(a)(3)(C)) ID of trial witnesses that party will use or may use (except solely for impeachment) and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will/may be evidence at trial (exhibits) (FRCP 26(a)(3)(C)) When must these expert disclosures be made? When must these expert disclosures be made? When must these pretrial disclosures be made? When must these pretrial disclosures be made?

TIMING OF THESE DISCLOSURES UNDER 26(2) and 26(3) Timing for disclosures re: experts - 90 days before trial in absence of stipulation/court order – or if solely to rebut other party’s evidence, 30 days after other party’s disclosure. Timing for disclosures re: experts - 90 days before trial in absence of stipulation/court order – or if solely to rebut other party’s evidence, 30 days after other party’s disclosure. Timing for pretrial disclosures - 30 days before trial in absence of court order. Objections w/in 14 days thereafter. Objections not made other than relevance/prejudice are waived. Timing for pretrial disclosures - 30 days before trial in absence of court order. Objections w/in 14 days thereafter. Objections not made other than relevance/prejudice are waived.

FORM OF DISCLOSURES Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: In writing In writing Signed by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3) Signed by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3) Served on other parties – 26(a)(4) Served on other parties – 26(a)(4) Only the pretrial disclosures must be filed with court – 26(a)(3) Only the pretrial disclosures must be filed with court – 26(a)(3)

FAILURE TO MAKE AUTOMATIC DISCLOSURES What happens if a party fails to make the required automatic disclosures under 26(a)? What happens if a party fails to make the required automatic disclosures under 26(a)?

DISCOVERY TECHNIQUES: THE BIG PICTURE Advantages/Disadvantages Advantages/Disadvantages Party/nonparty? Party/nonparty? How do you obtain using one of these techniques? How do you obtain using one of these techniques? All discovery obtained through any of these techniques is subject to 26(b) rule on discovery SCOPE All discovery obtained through any of these techniques is subject to 26(b) rule on discovery SCOPE

SIGNATURE REQUIREMENTS Who must sign interrogatory answers? Who must sign interrogatory answers? Who must sign interrogatory objections? Who must sign interrogatory objections?

INTERROGATORIES AND NON-PARTIES Can an interrogatory be served on a non-party? Can an interrogatory be served on a non-party? Can an interrogatory be served on a corporation? Can an interrogatory be served on a corporation?

RESPONDING TO INTERROGATORIES How should a party respond to an interrogatory? See 33(b)(1) and 33(d) How should a party respond to an interrogatory? See 33(b)(1) and 33(d) What are the time limits for responding to interrogatories? What are the time limits for responding to interrogatories?

ADVANTAGES/DISADVANTA GES OF INTERROGATORIES What are the advantages of interrogatories? What are the advantages of interrogatories? What are the disadvantage of interrogatories? What are the disadvantage of interrogatories?

DEPOSITIONS : FRCP What is a deposition? (See CB 934 for Dee’s) What is a deposition? (See CB 934 for Dee’s) What are the advantages and disadvantages of depositions? What are the advantages and disadvantages of depositions? Possible to take deposition before action is commenced if danger that testimony may be lost (FRCP 27) Possible to take deposition before action is commenced if danger that testimony may be lost (FRCP 27)

Officer at Deposition What is the role of the “officer” at a deposition? See FRCP 28, 30(a)(4) What is the role of the “officer” at a deposition? See FRCP 28, 30(a)(4) Can a party object to an officer? On what basis? See 32(d)(2), 28(c) Can a party object to an officer? On what basis? See 32(d)(2), 28(c)

TAKING DEPOSITIONS: FRCP 30 Can parties be deposed? Can parties be deposed? Can non-parties be deposed? (30(a)(1)) Can non-parties be deposed? (30(a)(1)) Can a corporation be deposed? (See 30(b)(6)) Can a corporation be deposed? (See 30(b)(6)) When is leave of the court required to take a deposition (See 30(a)(2))? When is leave of the court required to take a deposition (See 30(a)(2))?